12/20/2018

Can the President Be Indicted?Michael Ramsey

Following up on Andrew Hyman's post on indicting a sitting President, here are point/counterpoint posts from Laurence Tribe (Presidents can be indicted before impeachment) and Philip Bobbitt (Presidents cannot be indicted before impeachment).

Tribe:

The president and vice president run as a ticket. No president selects a vice president who wouldn’t strongly consider doing for him exactly what Vice President Gerald Ford did for President Richard Nixon: namely, give the president a full pardon shortly after he becomes the former president — whether that sudden reversal of fortune occurs upon the president’s being turned out by the voters, or upon his being impeached and removed, or upon his resigning under the threat of such ignominious removal.

It’s crazy to assume that the framers of the impeachment power would have created a system in which even the most criminally corrupt president could permanently escape full accountability. Immunized from criminal trial while serving in office (as the ostensible Justice Department policy would require), such a president could count on receiving a get-out-of-jail-free card upon his exit. For he would leave behind him a newly minted (albeit unelected) president wielding the power to pardon any and all “offenses against the United States.”

My aside: this argument seems historically ill-conceived. The framers did not think the President and Vice President would run as a ticket. That practice was implemented by the Jeffersonians in the election of 1800 and further entrenched by the Twelfth Amendment. Had John Adams committed a crime as President, it's far from clear that Jefferson (his Vice President) would have pardoned him. So the modern practice actually says nothing about the original design.

But here's more from Bobbitt:

Professor Tribe’s argument depends on an artful reading of Article I, Section 3, which provides that “the Party convicted [by the Senate in an impeachment proceeding] shall nevertheless be liable and subject to indictment.” The natural import of these words—their textual meaning to the ordinary reader—would assume, I think, that “the Party convicted” must be someone who has in fact been convicted, i.e., who has gone through an impeachment process prior to being subject to indictment.

Professor Tribe’s point, however, ignores the plain import of the text and relies instead on an implied intent. He believes that it would thwart the intentions of the framers—who clearly contemplated liability to indictment—if a president had to be convicted by the Senate first, because this would only bring to power his vice-president, who could be counted on to pardon the impeached president and thus render him immune from prosecution.

This argument depends upon some debatable assumptions. To begin with, it assumes that vice presidents, who must then serve out the disgraced president’s term, can be confidently counted on to pardon their predecessors. The example of Gerald Ford, which Professor Tribe cites, might go the other way: Ford’s re-election is widely assumed to have been doomed by his pardon of Richard Nixon, hardly an incentive to future vice presidents contemplating a pardon for a humiliated and disdained former president. Professor Tribe also takes for granted that if the new president were inclined to pardon his predecessor, he would abandon such a course of action if the impeached president were subject to an indictment. I see no basis for this conclusion, and it calls to mind the phrase “swallowing the camel and straining at the gnat,” for surely a successor who was willing to take the heat for pardoning his disgraced and impeached predecessor would not be deterred by the technicality that the predecessor was subject to an indictment. Indeed, presumably the current president must assume that an indictment is forthcoming in any event—otherwise, why pardon?

Finally, Professor Tribe assumes that the president’s crimes are not subject to state prosecution, for which a presidential pardon is ineffectual. In fact, ignoring the prospect of state prosecutions is perhaps the greatest vulnerability to Professor Tribe’s suggestion . . .

I think all of these arguments miss a central point. I don't think the Constitution's text precludes pre-impeachment indictment, but I think the Constitution's structure (as originally designed) precludes it as a practical matter. First, as to text, Article I, Section 3, paragraph 7 seems to me to say only that if the President (or any federal officer) is impeached and removed from office, that person can still be criminally prosecuted. That is, double jeopardy does not bar subsequent prosecution for the same offense that prompted the impeachment. The text does not say anything one way or the other about whether criminal prosecution could precede impeachment. Moreover, if Article I, Section 3 means that the President cannot be prosecuted prior to impeachment, it must also mean that no federal officials (including judges) can be prosecuted prior to impeachment. (It does not say anything specific to the President.) That reading seems at least somewhat unlikely.

I nonetheless agree with Andrew and Professor Bobbitt that the framers assumed a sitting President would not be prosecuted, at least by federal officials. But Article I, Section 3 is not the reason. Instead, that is a practical result of the original design, which placed all of the "executive Power" with the President. Executive power, whatever else it includes, at minimum includes the power of prosecution. Thus the President was given full control over federal prosecutions, including the power to decline to prosecute. As a result, it would not have occurred to the framers that a sitting President would, in effect, prosecute himself. (This assumption likely underlies Hamilton's comments in Federalist 69 and 77 that the President is subject to impeachment and then criminal prosecution).

The more difficult question is whether the President is subject to state criminal prosecutions. Professor Bobbitt says "I cannot bring myself to believe that the U.S. Constitution would permit state grand juries to preempt the impeachment process by indicting presidents." Perhaps, although Aaron Burr, as sitting Vice President, was charged at the state level after shooting Hamilton. More importantly, if there is such a bar, it doesn't come from Article I, Section 3 (unless one thinks that no federal official can be prosecuted for a state law crime).